2024 (2) TMI 1523 - Tri - IBC

Tribunal validates Bank's Insolvency Petition under I&B Code 2016, appoints Resolution Professional; Personal Guarantor objections deferred.

M/s. Bank of Baroda Versus Mr. Farooq Ali Khan

The Tribunal upheld the validity of the Company Petition filed by the Bank to initiate the Insolvency Resolution Process under the I&B Code, 2016, ... Seeking to initiate Insolvency Resolution Process for the Personal Guarantor - validity of the personal guarantee agreement and limitation - HELD THAT:- The issue/objections raised by the Ld. Counsel for the Personal Guarantor will be considered after the submission of the report by the Resolution Professional and response of the Personal Guarantor on the same. Shri Ram Ratan Kanoongo, as proposed by the Financial Creditor in Part-IV of the Form-C, who is registered with IBBI as Insolvency Professional having Registration No. IBBI/IPA-001/IP-P00070/ 2017-18/10156 is appointed as the Resolution Professional in the present matter. Written consent is given by the said RP through Affidavit dated 20.12.2021 which is annexed as Exhibit -18 of the petition. Petition disposed off. 1. ISSUES PRESENTED and CONSIDERED Whether the Insolvency Resolution Process (IRP) can be initiated against the Personal Guarantor under Section 95(1) of the Insolvency and Bankruptcy Code (I&B Code), 2016 for the alleged default. Whether the objection regarding limitation and validity of the Personal Guarantee, including the claim of release from the guarantee, can be adjudicated at the stage of admission of the application under Section 95 to Section 99 of the I&B Code. The scope and effect of the interim moratorium under Section 96(1)(a) of the I&B Code during the pendency of the application for initiation of insolvency resolution against the Personal Guarantor. The procedural role and duties of the Resolution Professional (RP) appointed under the Code, including the timeline and nature of the report to be submitted under Section 99(1). 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Initiation of Insolvency Resolution Process against the Personal Guarantor under Section 95(1) of the I&B Code Relevant legal framework and precedents: Section 95(1) of the I&B Code empowers a financial creditor to file an application before the Adjudicating Authority for initiating insolvency resolution against a personal guarantor to a corporate debtor upon default. Rule 7(2) of the I&B (Application Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 prescribes procedural requirements for such applications. Court's interpretation and reasoning: The Tribunal recognized the statutory framework allowing the financial creditor to initiate insolvency proceedings against the personal guarantor for the outstanding default amount. The application was filed with requisite documents including the guarantee agreement and evidence of default. Key evidence and findings: The financial creditor demonstrated a default of Rs. 2,58,60,17,543.61/- by the personal guarantor. The pending recovery application before the Debt Recovery Tribunal was noted but did not preclude initiation of insolvency proceedings. Application of law to facts: The Tribunal found that the financial creditor had made out a prima facie case for initiation of insolvency resolution against the personal guarantor under Section 95(1), subject to further examination by the Resolution Professional. Treatment of competing arguments: The personal guarantor's counsel raised objections regarding limitation and validity of the guarantee, which were deferred for consideration after the RP's report. Conclusions: The Tribunal allowed the application to proceed to the next stage by appointing a Resolution Professional to examine the application and submit a report under Section 99(1). Issue 2: Adjudication of objections relating to limitation and validity of the Personal Guarantee at the admission stage Relevant legal framework and precedents: The Tribunal relied on the Supreme Court's ruling in a recent judgment which clarified that no judicial adjudication on the merits of objections such as limitation or validity of guarantee occurs at the stages under Sections 95 to 99 of the I&B Code. The Adjudicating Authority's role at admission is limited to a prima facie satisfaction and natural justice principles apply at the acceptance/rejection stage under Section 100. Court's interpretation and reasoning: The Tribunal held that objections raised by the personal guarantor concerning limitation and release from guarantee cannot be decided at the admission stage. These issues are to be addressed after the Resolution Professional submits the report and the personal guarantor is given an opportunity to respond. Key evidence and findings: The personal guarantor's counsel contended that the guarantee was no longer valid due to release, and that the claim was barred by limitation. The Tribunal noted these contentions but deferred their adjudication. Application of law to facts: The Tribunal applied the Supreme Court's guidance that the Adjudicating Authority's decision under Section 100 to accept or reject the application is judicial and requires adherence to natural justice, but initial stages do not involve judicial determination on such objections. Treatment of competing arguments: The Tribunal balanced the need for procedural fairness with statutory mandates, ensuring that objections would be considered at the appropriate stage after the RP's report. Conclusions: The Tribunal reserved consideration of limitation and validity objections until after the Resolution Professional's report, ensuring compliance with procedural safeguards. Issue 3: Effect of interim moratorium under Section 96(1)(a) of the I&B Code during pendency of insolvency application Relevant legal framework and precedents: Section 96(1)(a) provides for an interim moratorium upon filing of an insolvency application against a personal guarantor, which stays all pending legal actions and prohibits initiation of new proceedings in respect of any debt. Court's interpretation and reasoning: The Tribunal confirmed that the interim moratorium commenced from the date of filing of the application and will continue until the date of admission or rejection of the application. Key evidence and findings: The Tribunal observed that the moratorium effectively stays all legal proceedings related to the debt during the pendency of the insolvency application. Application of law to facts: The Tribunal applied the statutory provision to stay the ongoing recovery application and prevent any fresh proceedings against the personal guarantor during the moratorium period. Treatment of competing arguments: No contrary submissions were recorded regarding the moratorium's applicability. Conclusions: The interim moratorium was declared effective from the filing date, ensuring protection of the personal guarantor from legal actions during pendency. Issue 4: Appointment and role of the Resolution Professional and procedural directions Relevant legal framework and precedents: Sections 95 to 99 of the I&B Code and related IBBI regulations govern the appointment, duties, and reporting obligations of the Resolution Professional in insolvency proceedings against personal guarantors. Court's interpretation and reasoning: The Tribunal appointed a registered Insolvency Professional as Resolution Professional based on the financial creditor's proposal and verified his consent. The RP was directed to examine the application within ten days and submit a report recommending approval or rejection under Section 99(1). Key evidence and findings: The RP's written consent was on record. The Tribunal emphasized compliance with IBBI regulations regarding fees and conduct. Application of law to facts: The Tribunal ensured procedural compliance by formally appointing the RP and specifying timelines for report submission to facilitate expeditious disposal. Treatment of competing arguments: No objections were raised regarding the appointment or role of the RP. Conclusions: The RP was appointed with clear directions to examine the application and submit a report within the stipulated timeframe, enabling the Tribunal to proceed to the next stage of adjudication.